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66 




NGEDBYTHE NECK 



U NTIL 



YOU BE DEAD ;" 



OR, 



WHY THE DEATH SENTENCE 



' SHOULD BE ABOLISHED. 



BY A 

MEMBER OF THE NEW YORK BAR. 



< ^>» » 



WM. C. WILTON, PUBLISHER, 

BROOKLYN, N. F. 

18 7 7. 



Entered according to Act of Congress, in the year one thousand eight hun- 
dred and seyenty-seyen, by 

WILLIAM C. WILTON, 

In the Office of the Librarian of Oongress, at Washington, D. C. 



INTROD UCTION. 



The question of the abolition of capital punishment 
is one which has been agitated for many years, and 
learned men, for and against, have discussed it before 
the public, through the press, and in the halls of legis- 
lation. The author is well aware that only a minority 
of the people — even in this age of enlightenment — 
agree with him, but believes that that minority is larger 
to-day by a hundred fold than it was half a century 
ago. The desire to execute liuman beings for capital 
offences is too firmly rooted and grounded in Society 
and the State to be eradicated except by discussing 
rationally and seriously the inhumanity of the practice. 
The reader is asked to consider the question presented 
herein, which is destined to engage the attention of the 
people of all nations in the future as they become more 
thoroughly educated in moral and Christian truth. 



HEAD NOTES TO CHAPTERS. 



CHAPTER I. 



Murder among the Gotba in Sweden and Denmark — Case of 
John Roose — Cokeys definition of murder — Blackstone's com- 
ments and opinion of murder — Cases of Lord Stafford and 
Lord Russell — Case of the Shears brothers — Execution for 
trivial offences. 

CHAPTER II. 

Positions of those who pardon — Opposition to capital punishment 
— Views of Elizabeth Fry — Secretary Stanton and Abraham 
Lincoln — The law of Iowa abolishing the death penalty — 
Petition of the Society of Friends — Argument used in favor 
of the death penalty — Views of George Fox. 

CHAPTER III. 

The trial of Mrs. Hartung — Charge of Judge Ira Harris in her 
case — The scene in Court — Position of the jury — The lesson 
this case teaches — Innocent men hung — Phair^s case in Ver- 
mont. 

CHAPTER IV. 

Right of trial by jury — Secured by Magna Charter in England — 
First law in New York creating juries — The juryman's position 
in case of murder — Qualifications of juryman — Execution of 
Owen Lindslay, at Syracuse, N. Y. — Affecting scenes — Execu- 
tion in Massachusetts — A clergyman's prayer on the scaffold — 
Divine authority for capital punishment discussed. 

CHAPTER V. 

Murderers plea of insanity — A case in New Jersey — Murders 
by drunkards — Case of Henrietta Robinson — Judge Harris 
again quoted — His charge to the jury in her case — What 
punishment is proposed as a substitute for banging — What 
its opponents ask — No Divine right given to execute men. 



(( 



^i/f^i^FP :PT W? r^Ff 



UNTIL YOU BE DEAD-" 



^ ^ N 



CHAPTER I. 

There is evidently a decided tendency on the 
part of many to look with increasing anxiety, 
every year, for a change in the mode of punish- 
ment of criminals convicted of murder. Men 
who, a few years ago, advocated the death pen- 
alty, now think and talk diflTerently ; the public 
mind has at length acquired fortitude to consider 
seriously any argument which may be presented 
to abolish legal executions, — and we fully be- 
lieve that now, at the beginning of the second 
century of our national existence, the people of 
our country mean to take this subject into con- 
sideration with a view to practical results, and 
study it without prejudice, for the highest 



10 *• HANGED BY THE NECK 

good of society and the State, and for tlie pre- 
vention of crime. No fact is better established 
than this: Whatever the people do to prevent 
crime, not only aids in promoting a moral sen- 
timent in society, but reduces the burdens of 
taxation, and finally leads to the permanent 
good of those who often through neglect be- 
come criminals. 

In advocating the absolute and unqualified 
repeal of the law of capital punishment, there 
is but one motive of the author, and that is to 
awaken in the people a proper sense of the im- 
portance of its repeal, and to charactei'ize this 
law as one which ought not to be allowed to 
longer disgrace the statutes of our Christian 
country. Tlie nobler and better feelings of the 
human heart shrink from those sad scenes 
wherein human life is ofi'ered as an atonement 
for crime ; and those who live when this law of 
judicial murder becomes a thing of the past, 
will thank Grod for its abolition and regret that 
it ever prevailed as an American method of 
punishment. 

It has always been the design of the law- 
makers of all nations, so far as possible, to pass 
such laws as would tend to terrify the murderer 



UNTIL YOU BE DEAD." 11 

and decrease this crime. In ancient times, it was 
applied to the secret killing of another. Among 
the Goths, in Sweden and Denmark, when a 
secret murder was committed, tlie law demanded 
that the community among whom such secret 
murder took place, should give up the murderer, 
and, on their failure to comply, the Vill in which 
the crime was committed, was liable to a heavy 
fine or amercement. This custom emanated 
from the presumption that the whole populace 
of the Vill perpetrated the crime, or were ac- 
cessory to it. Hence, if no surrender was made 
— whether or not the murderer was known to the 
Vill — a heavy amercement was laid upon its in- 
habitants, innocent and guilt)' alike. 

During the reign of that bloody monarch of 
England, Henry the Eighth, a statute was passed 
legalizing the boiling to death of any person 
found guilty of murder by poisoning. This 
oflTence was looked upon as the most henious 
and dastardly of all murders; wherefore there 
appeared no method so satisfactory for disposing 
of such a murderer, or to avenge such a crime, 
as that of boiling the wretch to death I The 
iniquitous law had its origin in a case that hap- 
pened during Henry's reign. A cook, by the 



12 "HANGED BY THE NECK 

name of John Boose^ was detected throwing 
poison into a large potraf broth prepared for tlie 
Bishop of Rochester's family, and for the poor 
of the parish. He was at once arrested, tried, 
convicted of the terrible crime, and, nnder this 
more terrible statute, was sentenced to be boiled 
to death. Thus, amid the excitement of the 
populace, at a dark period in England's history, 
when her subjects knew but little of religious 
or human obligations, this man died by this 
most ignominious and horrible torture. 

Lord Coke, in his works, reports many cases 
where persons suffered death by tliis heathenish 
punishment. But this law, even in such times, 
remained but a short period to disgrace the 
English statutes. It was repealed by 1 Edward 
VI : C. 12. 

At common law, murder is " when a person 
of sound memory aiid discretion, unlawfully 
killeth any reasonable creature in being, and 
under the King's peace — with malice afore- 
thought, either expressed or implied." This is 
the definition given by Sir Edward Coke, and 
it has become the kx terroe of all civilized 
nations. 



UNTIL YOU BE DEAD." 18 

The several States of this Union have based 
their statutory enactments upon this definition, 
as will appear by a careful perusal of the laws 
of most of the States of this Union. 

That great and learned commentator, Black- 
stone, who lived and wrote more than a cen- 
tury ago, at a time wlien the people of England 
were more clamorous for the blood of the mur- 
derer than they are now, wisely said, that '*it 
was far better ten guilty men escape than that 
one innocent person suffer." No one will ques- 
tion the wisdom of the saying, for in the humane 
recesses of every man's breast will be found a 
like sentiment. Nor can any one doubt that, if 
Blackstone were living to-day, he would — 
taking into consideration all his writings upon 
this subject, which very clearly and emphati- 
cally define his feelings — be expressly in favor 
of the total abolition of capital punishment. 
We find in his writings, side by side with the 
admission that while it was highly important for 
the king's peace that all murderers should be 
severely punished, a spirit of mercy permeating 
every page — a sublime voice declaring that there 
should be some other mode of punishing the 
murderer than by death. Writing of crimes 



14 "HANGED BY THE NECK 

against the person, he says : ^' The most princi- 
pal and important is the offence of taking away 
that life which is the immediate gift of the great 
Creator, and of which therefore no man can be 
entitled to deprive himself (ir another, but in 
some manner either expressly commxinded in, or 
evidently deducible from^ those laws which the 
Creator has given us : the divine lata I mean, of 
either nature or revekUion"''' The question there- 
fore arises : Where do we find a right given man, 
coming from the Creator, to take that which 
the Creator alone can give, and which neither by 
" nature or revelation" we have a right to take ? 
Again Blackstone says : f ** To shed the blood of 
our fellow creature is a matter that requires the 
greatest deliberation and the fullest "conviction of 
our own authority, for life is the immediate gift of 
Ood to m^n^ which neither he can resign nor can 
it be taken from him unless by the command or per- 
mission cf Him who gave it ; either expressly re- 
vealed or collected from the laws of nature or 
society by clear and indisputable demonstra- 
tion." And again : ** When a question arises 
whether death may be lawfully inflicted for this or 

* Sharswood'a Blackstone, 4th Vol., page 176. 
t 4 Vol. Sharswood's Blackstonej p. 10. 



UNTIL YOXJ BE DEAD." 16 

that transgression, the wisdom of the laws mast 
decide it."* 

When a murderer is " hang by the neck antil 
he be dead," then it is that the State, by and 
through its sovereign power, applies the lex 
talionisj which is against the very essence of the 
divine law coming to mankind from the Saviour. 

The history of the world presents many differ- 
ent modes of executing the murderer, or those 
who committed offences for which they suffered 
the death penalty. Men have been boiled, made 
to take the same kind of poison they gave their 
victims, their heads have been severed from their 
bodies, they have been shot in war, burned, 
starved, hanged by the neck, drawn and quar- 
tered, and otherwise judicially slain, according 
to the statutes in force at the time.* The princi- 
ple is the same in all cases, no matter by what 
process the life is taken, or under what law the 
condemned is made to expiate the crime com- 
mitted. 

In the early history of England, there was 
much discussion as to whether the king could 



*4 Vol. Slinrawood's Blackstone, p. 10. 



16 "HANGED BY THE NECK 

change the punishment that the law imposed 
upon a subject for a crime to which the death 
penalty attached. 

While the statute remained in force for be- 
heading and burning, it was often varied by the 
king, who made hanging the penalty or vacated 
that part of the sentence which gave the sheriff 
orders to burn the body of the dead. Wlien 
Lord Stafford was convicted for the Popish plot, 
during the reign of King Charles tlie Second, 
he was sentenced to be beheaded, and the slieriffs 
were ordered to carry that sentence into execu- 
tion. But before the execution took place, and 
after the king's writ was received, tlie sheriffs 
petitioned the House of Lords for instructions 
how to execute him, believing as Lord Stafford 
had been prosecuted for impeachment — a crime 
punishable by death — that the king could not 
change the sentence in any way. The lords 
resolved that the sheriffs' scruples were ground- 
less, and declared that he must forthwith obey 
the king's writ. The discussion also engaged the 
attention of the Commons, who, after a debate 
extending over two days, at length sullenly re- 
solved that the king's writ must be obeyed, 



"UNTIL YOU BE DEAD. 17 

and that Lord Stafford's head should be severed 
from his body. 

There is an old adage — ** it is a long lane that 
has no turn." Men often in this life are visited 
with the arbitrary injustice they meet out to 
their fellows. 

When this case of Lord Stafford's came be- 
fore the House of Lords, Lord Russell, who was 
a member of that body, claimed that if a king's 
subject was sentenced to be beheaded and the 
body burned, the king could not remit any part 
of the sentence. It is related that he took a 
decided stand in favor of this doctrine ; and 
the sentence, fiendish in all its conditions, was 
carried out ; and Lord Stafford was beheaded 
and burned. 

But to Lord Russell there came a day of reck- 
oning. That which he advocated and was in- 
strumental in causing to be meted out to Lord 
Stafford, came near being his own fate. He was 
afterward condemned for high treason, and had 
pronounced upon him the same sentence im- 
posed upon his unhappy peer. 

He appealed to the king to be spared the igno- 
minious part of the sentence ; and the king re- 



18 "HANGED BY THE NECK 

mitted it, observing **tliat his lordship would 
now find that he was possessed of that preroga- 
tive which in the case of Lord Stafford he had 
denied him." 

Blackstone, in commenting upon the case, 
says: *'One can hardly determine (at this dis- 
tance from those turbulent times) which most to 
disprove of, the indecent and sanguinary zeal of 
the subject, or the cool and cruel sarcasm of 
the sovereign." 

In the year 1798, two brothers, Henry and 
John Shears, were tried at Dublin, Ireland, 
and convicted of high treason. The renowned 
Lord Norbury, the brilliant Curran, and the in- 
vincible Plunkett, were engaged in the trial. 
It was in an epoch of Ireland's history when 
England stood ready to draw the sword for the 
most trivial of offences. Curran in this case 
made one of his grand speeches. It was upon 
an objection his associate raised to one of the 
grand jurors who framed the indictment, on the 
ground that such juror was an alien — not natur- 
alized. 

In ordinary times this objection would have 
been fatal. But the excitement was great, and 



"UNTIL YOU BE DEAD. 19 

tlie feeling intense against the prisoners. They 
were men of distinction and prominence, of ed- 
ucation and of great influence in Ireland. Lord 
Carlton presided at their trial. In reading the 
account of it, there is observable a strong bias, 
both from the bench and from the witness stand. 
Every question of law, every objection that was 
made by the defence to immaterial evidence, — in 
fact, all proceedings which could be construed 
in favor of the prisoners, were ruled out by this 
Court, and the trial was rushed to a conclusion 
as probably no trial, of so much importance, 
ever was before. 

Curran fought nobly for the unfortunate men. 
Many times he overpowered the court by his 
eloquence and masterly argument ; and when 
there was a visible effect in his brilliant forensic 
efforts upon the jury — made at almost every 
step of the trial — the prosecution and the court 
sought by every means to check, combat, and 
counteract it. It was a case in which the court 
all but proclaimed in advance that the prisoners 
must die because they were traitors, and because 
the loyal subjects of the king demanded pro- 
tection and satisfaction. 



20 " HANGED BY THE NECK 

The jury retired, and in just seventeen minides 
brought in a verdict of *' Guilty !" 

After a feeling lecture to the prisoners, Lord 
Carlton pronounced the sentence, that they heex- 
ecuted the following day ; and after preparation 
by the sheriffs, these brothers were taken, arm 
in arm, upon the scaffold, and were hanged by 
the neck until they were dead? After they were 
let down, to add still greater horror to the execu- 
tion, the hangman separated their heads from 
their bodies, and, taking them up severally, pro- 
claimed to the bloodthirsty crowd— ^^ Behold the 
head of a traitor*.^ ^ 

These cases have been selected to illustrate 
the moral condition of those times. They 
prove that it was an easy and pleasant thing for 
a jury to condemn, forjudges to sentence, and 
for hangmen to execute those who were con- 
victed of any of the crimes punishable by death. 

Thus, in England, the judges of the olden 
time were the creatures of the throne : they 
were but the king's automatons echoing his 
sentiments. They pronounced the death sen- 
tence when commanded, and the people reposed 
in the old Mosaic law as a defence of the laws 



UNTIL YOU BE DEAD." 21 

which were then enforced against marderersand 
others condemned by statutes to be mercilessly 
put to death. We find them proclaiming from 
the bench — speaking for the throne — the old 
Mosaic law: '*Thus saith the Lord of Hosts" 
— " and, moreover, ye shall take no satisfaction 
for the life of tiie murderer who is guilty of 
death, but he shall surely be put to death, for 
the land cannot be cleansed of the blood that is 
shed but by the blood of him that shed it." 
Can it not be truthfully said, that to-day this 
same spirit actuates a majority of those who 
recognize the Christian dispensation ? Even so 
late as the 18tli century, it was made in Eng- 
land a capital offence to maliciously break down 
a fish pond wherein fish were kept and liable to 
escape, as well as to maliciously enter an orchard 
and then cut down or wilfully injure any cherry 
tree. These statutes were in force during the 
reign of the first and second Georges. But as 
time elapsed, and the people became more lib- 
eral, these barbarous statutes were repealed, and 
during the reign of George the IV. the offender 
and his accessories became liable to banishment 
or imprisonment, at the discretion of the throne. 
Thus, at every step in history, we are horror 



22 "HANGED BY THE NECK 

stricken by the bloodthirstiness that character- 
ized our species since God set His mark on Cain 
and sent him forth to be slain, down even to the 
nineteenth century, gilded as it is by the beams 
of the Sun of Righteousness. 

But the grosser atrocities were confined to an 
age of blood,— an age of crime and supersti- 
tion. They happened before mankind learned 
the teachings of Christ — before tlie people un- 
derstood what Christ's mission to earth was, or 
while understanding they disregarded it. They 
ignored those beautiful teachings : " Whosoever 
shall smite thee on the right cheek, turn to him 
the other also." ** Whosoever shall compel 
thee to go a mile^ go with him twain." ^^ Be 
merciful and thou shall obtain mercy. ^^ 

Yet, this language was addressed equally to 
the State as to the individual, and it is surely 
the duty of the State to see to it that the law of 
man does not conflict with the law of God. As 
an intelligent being, it is clearly the duty of each 
and every citizen, whether for or against the 
abolition of capital punishment, to study the 
will of our Saviour and the language of Christ's 
sermon on the mountain — admitted by secular 
philosphers to transcend tlie wisdom of Plato. 



; 



UNTIL . YOU BE : DEAD. 23 

But ill it there is not one word to justify the act 
of hanging human beings for any crime what- 
ever. 

When we come to a more minute examination 
of this very important subject, we find all oppo- 
sition comes from those who have opinions based 
upon the law laid down in the old testament 
and at a time long before men cultivated or be- 
came possessed of those finer feelings which 
have come to mankind by education and Chris- 
tian precept. It was during the dark ages that 
earthly laws were framed. From then until 
.now, men have been executed in all countries 
in diflFerent ways, for different crimes; Hence 
the prejudices which now exist against any 
material or permanent modification of this law, 
are based solely upon the theory that the law of 
retaliation is as much needed at this time as 
when in the dark ages human passions were in- 
tractable to restraint. 



24 "HANGED BY THE NECK 



CHAPTER II. 

It mast be conceded that no State can afford 
to frame laws on principles of compassion for 
guilt ; yet, justice can be meted out to the con- 
demned by an act of government — which is the 
supreme power of the State— that is not a per- 
sonal thing nor inconsistent with justice but for 
the good of the State and for the welfare, hap- 
piness and peace of the people. 

We are bound by every interest of humanity 
— by every law that came by and from the 
Author of Mankind — to administer justice in 
mercy to the condemned offender. 

When there goes to the Governor of a State 
strong appeals for executive interference and 
clemency ; — long petitions signed by humane 
sympathising christian people for the pardon of 
offenders — when there is ushered into his pres- 
ence some prayerful mother, who has appeared 
for the purpose of obtaining a pardon for her way- 
ward boy— a boy over whom this fond mother 
has prayed from infancy, and for whom she 
now sheds bitter tears as she beholds him about 



UNTIL YOTJ BE DEAD. 25 

to be led upon the scaffold to die in ignominy ; 
when a fond wife is ready to die for her husband 
rather than have him cast into a criminal's grave 
to disgrace her innocent children, that governor's 
position is an- unenviable one, and those who 
know nothing of these scenes can form but a 
faint idea of the executive's feelings and respon- 
sibilities at such times. 

We often hear it remarked that governors of 
States abuse the pardoning power in the magna- 
nimity extended by them to those who are sen- 
tenced to be executed, and they are unmercifully 
abused by a portion of the press, and by those 
who long to stand beneath th« gallows whereon 
these wretches are to be executed, and exclaim 
with emphasis, "hang him, it serves him right." 
But, humanely speaking, no man was ever yet 
pardoned who should have suffered death ; for 
death, though the law may declare otherwise, 
ought to come only from the Author of Man 
when He chooses to send it. Therefore, when 
kings, potentates, governors, or others in au- 
thority, having the lives of human beings in 
their hands, and in virtue of the powers vested 
in them grant pardons, the question very prop- 
erly is presented — Do they err in exercising the 



26 "HANGED BY THE NECK 

humane clemency of sparing a poor sufFering 
being from the disgrace and ignominy of the 
gallows, and should they be condemned for 
such great and noble acts of mercy ? How 
many poor innocent children have been dis- 
graced by the execution of a father, and how 
many friends and relatives have been saddened 
by these judicial murders ? Many men have 
been hanged because they committed murder 
in the heat of passion caused by provocation, 
but not justifiable by any means, however sur- 
rounded by extenuating circumstances. Who 

• 

will say that justice would not have been as 
well served if the prison could have taken these 
men instead of the gibbet ? Then those who sit 
as judges upon the trials of criminals have a 
most unpleasant and solemn duty to perform in 
passing sentence upon a poor condemned fellow 
being. Almost every judge will assert that the 
most unpleasant part of his duty upon the bench 
is to preside in cases of murder, whenever un- 
fortunate men are being tried for their lives. 

No human being can go through the trial of a 
murderer as judge, counsel, or juror, without 
feeling that there is a power over and beyond the 
power of man, which should lead and guide in 



UNTIL YOU BE DEAD." 27 

this most momentous, solemn duty. And when 
the jury convict and the judge, in solemn tones, 
pronounces the death sentence upon the crimi- 
nal, *^ hanged by the neck until you be dead," 
there goes a deep shudder to the heart of every 
sympathizing human being who reads or hears 
this fiat and who is not confirmed in the belief 
that this law is right. 

To say that in this age of Christian civilization 
and human progress, this mode of executing men, 
which emanated from the old Mosaic law, should 
be' continued, is a disgrace to our nationality. 
To keep in vogue the ancient doctrine of ''an 
eye for an eye, a tooth for a tooth," should 
cause the blush of shame to appear upon the 
cheek of every being who sanctions it. 

It is an admitted fact that there are many 
good people who view the question of the total 
abolition of capital punishment in a light diflfer- 
ent from this. They think that its abolition 
would not be conducive to the best interests of 
society and the State, and therefore are honestly 
against any change. No matter what religious 
argument is presented or brought forward in 
opposition to such practice, they assume that 



28 '* HANGED BY THE NECK 

society has not only Divine right, authority, and 
precedent, but that it has an absolute, inherent 
right to say that he who offends and breaks the 
sixth commandment shall suffer death for the 
good of society — shall by his own life atone for 
that which he has taken. They hold, if it were 
not so ordained of God, that centuries ago this 
custom would have become extinct. In reply- 
ing to these arguments, advanced so confidently 
by a majority of the peoples of this and other 
countries, and as strongly and indelibly impressed 
upon the minds of men as they were during the 
bloody reign of Henry the VIII of England, 
there is found a full, complete and satisfactory 
answer in the 10th Chapter of Hebrews, 30th 
verse: *'Forwe know him that hath said ven- 
geance belongeth unto me, I will recompense, 
saith the Lord." And, also, in the 6th Chapter 
of Matthew, 7th verse, when Christ, as he stood 
before that multitude on the mountain, said : 
"Blessed are the merciful, for they shall oi)tain 
mercy." 

In the wisdom of our common Father in 
Heaven, He has constituted no two human be- 
ings alike. Look into a hundred thousand faces, 
and there may be found, it is true, some resem- 



UNTIL YOU BE DEAD." 29 

blance, but there are no two alike. So with the 
mind. It is in His divine economy different in 
every human being. No two persons' thoughts 
upon any given subject run in the same chan- 
nel ; no two persons treating of the same sub- 
ject will treat it alike. They may come to the 
same conclusions, but as they travel along the 
lines of their subject they depart from each 
other, and are only united at the goal of their 
investigation. So men have in the past and 
will differ for some time to come regarding cap- 
ital punishment. But we do not fear they ulti- 
mately will agree that it should be abolished. 

No great reform has ever been brought about 
without labor. It has cost many thousands of 
lives to establish firmly the religion of our 
Saviour. It is not necessary in this volume to 
specify any particulars in this regard, nor need 
we refer to the blood and treasure that has been 
sacrificed from time immemorial to establish 
those great reforms which have brought man- 
kind nearer right upon all questions which were 
sought to be established and which are intended 
to bring men nearer to right and justice. 

Thus it is not surprising that in this land to- 
day we find Christian men — yes, and Christian 



80 "HANGED BY THE NECK 

ministers — who are boldly giving this law their 
sanction, and thereby aid in keeping upon the 
statute books of most of the States this law of 
judicial murder. It is not surprising that some 
of our most learned Christian men fully believe 
that it would be an injudicious thing to repeal 
this law, which they Claim acts as a preventive 
of the crime of murder. 

Elizabeth Fry, who has made the condition of 
the inmates of States prisons and penitentiaries 
a study, and who has had great opportunities 
for observation, says, that ** the frequent public 
destruction of life by execution has a fearfully 
hardening effect upon those whom it is intended 
to intimidate." She further says : '* While it 
excites in them the spirit of revenge, it seldom 
fails to lower their estimate of the life of man, 
and renders them less afraid of taking it away 
in their turn by acts of personal violence."* 

During the great rebellion. Secretary Stanton 
was importuned day and night to pardon soldiers 
who were under sentence of death and were to 
be shot. No tears, no pleading, no petitions of 
mercy were of any effect. He was inexorable. 

* Janney^B Life of Q«orge Fox, p. 464. 



UNTIL YOU BE DEAD." 31 

He would not allow himself to interfere with the 
army discipline. If a military court decreed, or 
military orders were issued, to shoot any soldier, 
they must be executed. There was no appeal 
from that decision, and he turned from him every 
pleading friend of a condemned man as if they 
were not worthy his attention for a moment. 

It is not for us to say that in times of rebellion 
— when we were struggling for national life — that 
he was not right. War creates desperate means 
for desperate ends. But look at the course of that 
good man. President Abraham Lincoln, in whose 
heart there was "malice towards none," "char- 
ity for all." Time and again he pardoned poor 
unfortunate men who had been sentenced to die. 
In the sympathy of his great heart, he could 
not under any circumstances permit the death 
of any man. It is related in Carpenter's "Six 
Months at the White House," that upon one occa- 
sion a member of Congress from New York, learn- 
ing that an old neighbor had been condemned 
to be shot, called to see Mr. Lincoln. The guard 
would not let him pass. " I must see him said 
the congressman — it is a case of life and death." 
"But," said the guard, "he is'^in bed.' "I 
can't help it, I must see him." The guard 



32 "HANGED BY THE NECK 

passed him and he went to Mr. Lincoln's room, 
found him in bed, and told liim liis friend was 
to be shot the next day. He pleaded with the 
great man until, at last, without rising from his 
bed, he signed a reprieve, saying, as he did so, 
*'i donH think shooting him tvill do any goodJ^ 
Many cases similar to this one are related of Mr. 
Lincoln when his great heart, filled with mercy 
and pity, went out towards the poor condemned 
soldiers under sentence of death, — and, though 
army discipline was at stake, he could not bear 
to have a soldier shot. With him it seemed to 
make no difference what the offence — his desire 
was to save men from disgrace and death. He 
could not listen to an appeal without exercising 
that sympathy which few men would have en- 
tertained placed in his position, and many men 
are now living who can thank Abraham Lincoln 
that their lives were spared. 

It is the spirit manifested by Mr. Lincoln that 
is wanted in men to become advocates of the 
abolition of the death penalty : it is an out- 
growth of those generous, sublime traits in men, 
which portend human sympathy, human love, 
— a portion of that Divine love which is so 
powerful and yet compassionate. 



UNTIL YOU BE DEAD." 33 

On the Ist day of May, 1872, the Legislature 
of the State of Iowa abolished capital punish- 
ment by passing the following act : 

**Chap. 137.— An Act in Relation to 
Capital Punishment and Regulating Par- 
dons. 

^^ Sec. 1. Be it enacted by the General Assem- 
bly of the State of Iowa : The penalty of death 
as a punishment for crime is hereby abolished. 

^^ Sec. 2. All crimes heretofore punishable with 
death, shall be punished by imprisonment for 
life at hard labor in the State Penitentiary. 

" Sec. 3. That in all cases of conviction under 
the preceding sections, the Grovernor shall not 
grant a pardon unless the same shall have 
been recommended by the General Assembly 
of the State. 

'' Sec. 4. This Act shall take effect from and 
after its passage and publication. 

'* Approved May 1st, 1872.'' 

During the sitting of the Legislature, in the 
year 1876, an attempt was made to abolish this 
law and to restore capital punishment. The 
Society of Friends at once sent forward a peti- 



42 -HANGED BY THE XECK 

JIarc:;. lSo3, np.n tLe griani tbat the law of 
IS^'j to-'k airay :h-? p:»irer of execution, thereby 
miioing what hal be^fO done pnrsnant to the 
passage of that act, which reversed the jadgment 
and discharged Mrs. Hartnng from custody. 

This woman was guilty of this murder, and 
she should hare been punished. Her crime was 
the most heinous of all crimes, that of admin- 
istering slow poison deliberately to an unsuspect- 
ing victim, and that victim her husband. But 
the feeling at tliat time was averse to the hanging 
of any woman ; public sentiment ran high, and 
while it saw that she was evidently guilty, 
it abhored the scenes which would attend her 
execution. So strong was that sentiment, tbat 
the Legislature took the matter in hand, and, 
by its error in not abolishing the death penalty 
altogether, passed a law which the Court de- 
cided was ex post factoy and thus inoperative in 
the case of this poor woman. Had there been 
no attempt to change the law, the people at that 
time would have been called upon to witness 
the sad spectacle of hanging her by the neck 
until she was dead. 

This celebrated case was before the courts and 
country for nearly fouryeS.rs, as she was to have 



UNTIL YOU BE DEAD." 43 

been executed on the 27tli day of April, 1859, 
and was not discharged by tlie Court of Appeals 
until March, 1863. 

As is well known, Mrs. Hartung was tried in 
the City of Albany before Judge Ira Harris 
and a jury. Judge Harris was an honorable, 
upright man, and an able judge. No one can 
fail to see, in perusing the proceedings in this 
case, that he was deeply impressed with the 
awful position in which this poor unfortunate 
woman was placed ; and no one can fail to see, 
too, when they read the able charge made to the 
jury, he was sensitive under the responsibilities 
of the position he occupied when called upon to 
inflict the death penalty. 

We have thought best to quote here a portion 
of the judge's charge in connection with the ver- 
dict of the jury, and let those who favor the 
death penalty say if there liad been no law to 
authorize the execution of this woman, whether 
such a scene would have taken place upon that 
occasion of her trial. Doubtless, if she could 
have been imprisoned for life, the jury would 
have promptly convicted her. 

The judge said: ^'The law gives to the ac- 
cused the benefit of every reasonable, rational, 



36 "HANGED BY THE NECK 

thouglit, should be forever excluded from 
society, and in solitary confinement pay the 
penalty of his awful crime. Such is the condi- 
tion of the human heart in its depraved state, 
that the terror of the gallows seems to have no 
effect upon the confirmed criminal. For, with 
the sympathy of juries, through the technicali- 
ties of the law and the subtle acumen of coun- 
sel, there seems to be formed in the ininds of. 
most murderers the thought that there is by 
these devices a chance of escape from death ; 
and by and through these devices many guilty 
persons do escape. 

But with a solitary prison cell open before 
them, wherein they shall be confined during life, 
with no possible chance of liberty save what is 
proposed hereafter ; with a proper restraint upon 
the pardoning power, it is certainly fair and rea- 
sonable to^'presume that juries would overlook 
many questions of doubt which now arise to 
perplex them in almost every case, and apply 
these doubts, if considered at all, unfavorably 
to the murderer, he would therefore be more 
certain of conviction, and the criminal classes 
would be far less numerous and dangerous than 
now. 



UNTIL YOU BE DEAD." 37 

The argument used by those who are oppos- 
ing its abolition, is the old Scriptural idea re- 
corded in the 9th Chapter of Grenesis, 6th verse : 
''Whoso sheddeth man's blood, by man shall 
his blood be shed." Every prosecuting attorney 
upon the trial of the murderer, invariably pours 
this old Mosaic law in the ears of the jury. It 
has been the argument used to keep it upon the 
statutes of most of the States of the Union, and 
so effective has it been that, as we liave said be- 
fore, humane, wise men think it will be useless 
and highly improper to attempt its general re- 
peal. It is pleaded in justification, by every one 
who thinks, that the man or woman who delib- 
erately, with malice aforethought, takes the life 
of a fellow being shall pay for that life so taken 
the penalty of death. 

There are many Christian people who assert 
that '' any man who Mils another ought to he hanged J' ^ 
There are many ministers of the Gospel who 
preach what Paul taught when he said, '* but the 
greatest of these is charity," who, in spite of 
such teaching, turn to the world and say, ^^ tve 
mmt hang men whx> commit capital crimes,^ ^ " The 
good of society demands it — even Christianity de- 
mands it,"^^ 



38 "HANGED BY THE NECK 

In the life of that good man, Gteorge Fox, who 
suffered so much for the cause of his faith in a 
religion which is so beantiful and so powerful, 
is found the following in opposition to the death 
penalty, which, we believe, states the established 
doctrine of the Society of Friends at this day : 
** The proper ends of punishment in all criminal 
cases are—Jirst, to reform the offender ; second, 
to deter others from crime ; third, to obtain resti- 
tution or compensation. Society has no more 
right than individuals to execute vengeance 
upon its offending members. * Avenge not 
yourselves,' 'says the apostle to the Gentiles,' 
'but rather give place unto wrath.' 'Ven- 
geance is mine, I will repay saith the Lord.' 

"The death penalty can neither reform the 
criminal nor procure restitution, — of the three 
ends proposed it can at best effect but one, that is, 
to deter others from crime. How far it subserves 
this purpose has of late years become a subject 
of serious examination, and many reflecting 
minds have arrived at the conclusion that it tends 
to promote crime rather than ppevent it. 

" We may urge another objection to the death 
penalty that it is irrevocaUe. If an innocent man 
suffer 8s society cannot restore him to life / and it is well 



UNTIL TOTJ BE DEAD. 39 

known, that through the uncertainty of evidence, 
many such have been executed. 

*'A third objection is, that criminals often 
escape all punishment through the repugnance 
of jurors to find a verdict in capital cases ; 
whereas, if the penalty were imprisonment, at 
labor, for a length of time proportioned to the 
ofrence, convictions would be more certain, and 
all tlie ends of punitive justice would be ob 
tained."* What stronger argument can be ad- 
duced than this ? 

On the 20th day of September, 1876, in The 
Neto York Commercial Advertiser, one of the ablest 
and most popular of theeveningjonrnalsof that 
city, appeared the following editorial : 

''Barbarity on the Scaffold. — A man was 
hung in Canada yesterday, and when the black 
cap had been drawn over his palid face, and the 
executioner attempted to spring the trap, a chain 
broke and the trap refused to work. A sledge 
hammer was brought and five long minutes were 
taken up in forcing the bolt. During all this 
time — an eternity to him — the wretched man stood 
there, with a perceptible shudder of the frame at 

* Jnnney'e Life of George Fox, p. 468. 



40 "HANGED BY THE NECK 

each stroke of the hammer. He must have suf- 
fered a thousand deaths in that time, under the 
barbarous torture of the law, and even the spec- 
tators found the sight inexpressibly horrible. 
Such scenes are brutal, and such a mode of death 
is a disgrace to our civilization. The accidents 
that have recently taken place in Canada, Grreat 
Britain and this country, show that it is the method 
that is at faultj and not the executioners. Im- 
prisonment for life, without hope of a pardon^ would 
be far better than the barbarities of the rope." 



UNTIL YOU BE DEAD." 41 



CHAPTER III. 

The trial of Mary Hartung, who was indicted 
for the murder of her husband, Emeil Hartung, 
in the City of Albany, N. Y., by administering 
poison to him on the 10th day of April. 1858, 
was one of the most exciting that has ever taken 
place in this country. She was tried in Janu- 
ary, 1859, and found guilty of murder in the 
first degree. She was sentenced on the 3d day 
of March, 1859, to be hanged on the 27th day 
of April of that year. On the 2Sd day of April 
— less than one week prior to the day her execu- 
tion was to have taken place— a stay of proceed- 
ings was granted and she was not executed. 

Her case was carried to the Court of Appeals 
of the State of New York, and that tribunal 
granted a new trial. This new trial was never 
had, for the Court of Appeals discharged her in 




84 "HANGED BY THE NECK 

tiou imploring the Legislature not to repeal this 
hunaane law, which had for four years been the 
law of the State. In it they said : '' We believe 
we are not influenced by a sickly sentimentalism. 
on the subject. Human life is the boon conferred 
by tlie Almighty on man, the pivot of his des- 
tiny for the present and the future. Who but 
the Divine author of life can assume the awful 
responsibility of extinguishing it ? Let the mis- 
guided victim be surrounded by all the guards 
which the safety of the community requires, in 
the silent cell, where he could commune with 
God, the convict would have an opportunity for 
contemplation and repentance and could harm 
no one. The infliction of the death penalty is, 
we believe, not only an unwarrantable assump- 
tion of a prerogative that the State should not 
assume, but induces a demoralizing public senti- 
ment and lacerates the feelings of a very large 
class of people. Conscientious repugnance to the 
death penalty by many, we have no doubt, has induced 
the escape of guilty persons upon whom the sentence 
of the law should have been visited, while there 
would be no hesitation in convicting a guilty 
party and sentencing him to his fate, where, if 
there was a possibility of his innocence ever being 



UNTIL YOU BE DEAD. 35 

made apparent, it would not be too late to meet 
out justice to injured innocence. We believe a 
class of persons who deserve severe chastisement 
by law, are those who impiously take the law 
into their own hands in an unauthorized and 
illegal manner ; and we further affirm that we 
believe that if the law was more stringent against 
the sale of rum there would be less crime com- 
mitted." 

This petition is a merciful document that ap- 
peals to every heart, and places in a noble light 
the men who, by their love for Grod and sympathy^ 
for His created beings, are anxious to stop for- 
ever the murder of men by sanction of law. 

" Conscientious repugnance." What man or 
woman living to-day, who has read the terrible 
tales of the scaffold, whose better nature has 
not revolted, and whose feelings of "repug- 
nance" have not gone forth toward these terrible 
scenes of judicial murder? ''Who but the 
Divine author," surely, has the power to ex- 
tinguish human life ? Who but our Father in 
Heaven has the right to condemn a being to die ? 

Willful murder is the greatest of all crimes, 
and, he who commits it, with malice afore- 



44 "HANGED BY THE NECK 

well grounded doubt It is an admirable.feature 
of our law, that maxim, that an individual is 
always to be presumed innocent until guilt is 
established. Every jury is allowed to act upon 
this presumption ; and if the guilt of the ac- 
cused, in this case, is not established to youremtire 
satisfaction, this presumption comes in, and allows 
you to say she is not guilty. It is the right 
of the accused, that she shall have the benefit 
of every reasonable doubt. But if, after consid- 
ering the whole case ; — if after a deliberate re- 
view of the testimony ; if after considering the 
testimony in all its bearings, — if then your minds 
are led irresistibly to the conviction that the 
poigon which produced his death was adminis- 
tered by the hand of the prisoner, that she is 
guilty of her husband's death, then, however 
painful to her, you have no alternative. The 
o^th which you have taken, that a true verdict 
you will render, requires that you should pro- 
nounce her guilty. Gentlemen, I submit the 
case of this unhappy woman to your hands. 
Be merciful but just. Let your verdict be such 
that, in after life, when you reflect upon this 
atv/ul moment^ your consciencies will be at rest. 
Hold the balance of justice with an even hand. 



UNTIL YOU BE DEAD." 45 

'^Grive the accused the benefit of any reason-^ 
able doubt ; but if you can find no such doubt 
on which your merciful wish can hang, then you 
must render a verdict of guilty. Grentlemen, 
the destiny of the accused is in your hands." 

The jury retired to consider their verdict on 
Saturday, the 5th day of February, and on Mon- 
day, the 8th day of February, came into Court 
and submitted the following communication: 

*'The jury are willing and ready to admit 
that the prisoner is not innocent, but is guilty to 
a certain extent, but not as principal. We are 
divided on this question. Now, sir, they wish 
to know if they can render any other verdict 
than guilty or not guilty of the crime of which 
she stands charged ?" 

Judge Harris: "I see, gentlemen, the point 
on which your minds are laboring, and I feel 
bound to say this much to you, that I can con- 
ceive of no aspect of the testimony in this case 
which would warrant you in finding any other 
verdict than 'guilty' of the crime with which the 
accused is charged. There are cases where the 
testimony may warrant a conviction for a crime 
of an inferior grade ; but in a case of this char- 



46 -HANGED BY THE NECK 

acter — a case of poison — the accused is guilty or 
not guilty of the crime. While I am pained to 
say so, I am constrained to say that in tliis case 
a verdict of manslaughter would not be sus- 
tained by the evidence." 

Foreman : "Some of the jury wish to know 
if the counsel for the prosecution and the pris- 
oner would agree on a different verdict than 
* guilty,' whether it could be done." 

Judge Harris: "I suppose not. Counsel 
cannot agree upon a verdict of manslaughter, 
as was done in a recent case; but I feel con- 
strained to say it would not be warranted by the 
evidence." 

Foreman : " We wish further to state to your 
Honor, that it is utterly impossible for us to agree 
upon a verdict, either of ' guilty' or ' not guilty,' 
— we have tried and failed." 

Judge Harris: " I would suggest under the 
circumstances — the jury liaving had their minds 
engaged with this last proposition, — whether it 
would not be advisable to retire for a few min- 
utes, and look over the ground once more, after 
what has occurred in Court." 



UNTIL YOF BE DEAD." 47 

The jury then again retired, and after an ab- 
sence of fifteen minutes, returned into Court 
again, with a verdict of '^guilty," and the pris- 
oner was sentenced to be executed on Wednes- 
day, the 27th day of April, 1859.* 

After a careful perusal of the above charge 
and the proceedings of the jury in opon court, 
can we not reasonably infer that so wise and 
able a man as Judge Harris was considered to 
be, would not, if he had had the opportunity, 
been an open advocate of the abolition- of capi- 
tal punishment ? Can we not plainly see that the 
jurors in this case were opposed to the death 
penalty ? Can we not see that there was mani- 
festly a desire to find her guilty of the crime 
charged if any other punishment than death 
could have been inflicted ? But the gallows 
stood erected before these jurors, — they could be- 
hold her struggling, suspended between heaven 
and earth ; and thus shrank from a duty which 
was so solemn, and fraught with such awful 
consequences. 

In all periods of history, we find cases wherein 
innocent men have suffered death for crimes 

* Reported 4Ui Parkin's Criminal Bepto., page 812. 



48 *• HANGED BY THE NECK 

which they never committed : men who, stand- 
ing upon the scaffold, having protested their inno- 
cence to an unheeding people, — a people whose 
hearts had become hardened by the long con- 
tinued scenes of judicial executions, and whose 
ears were then, as attention is now, turned away 
from the utterances of those who protest their 
innocence of the crime for which they are con- 
demned to die. 

In the year 1721, there lived in Edinburgh, 
Scotland, a poor hard-working upholsterer by 
the name of Shaw. He had a beautiful daugli- 
ter. She was a young woman of great personal 
attraction, and, by reason of lier father's position, 
she could not enter the society of the nobility or 
the aristocracy. Nevertheless, two young men of 
high birth fell in love with her. One of these 
young men — a licentious, dissipated man — her 
father desired her to marry. She protested, say- 
ing she did not love him, and under no circunv- 
stances, — not even to please her father, whom 
she loved as only a dutiful daughter can love a 
parent, — would she marry him. 

By reason of her obstinacy and disobedience 
to her father's wish and request, he became very 
cruel in his treatment of her. Time wore on and 



UNTIL YOU BE DEAD." 49 

she bore his cruel treatment as long as she could, 
living a miserable life. Finally, this daughter 
one day was found in her room weltering in 
blood. A dirk lay by her side. She was not 
dead when found, and, before she expired, when 
asked by those around her who committed this 
foul deed, she said, "Cruel father, thou art the 
cause of my death." 

He was arrested. Upon his shirt there was 
found, by the officer who made the arrest, a spot 
of blood, which the poor old man endeavored to 
explain. He was tried for the murder, con- 
victed, and on the 17th day of November of 
that year, was executed for tjie supposed foul 
murder of his daughter. 

The people of the city were greatly excited, 
because of the death of this young woman. 
And history states there was not one man or 
woman in Edinburgh who did not fully believe 
that the old man murdered his daughter. Ap- 
proval of the execution was therefore general. 

In August, 1772, the apartments formerly oc- 
cupied by the Shaws were rented. The man 
who was to occupy them, in cleaning out the 
room in which the poor girl was first discovered 



50 "HANGED BY THE NECK 

weltering in her blood, found in a cavity on one 
side of the chimney a piece of paper, folded 
like a letter. Upon examination it proved to be 
a letter written by this young girl, in which she 
stated, that by reason of her father's cruel treat- 
ment of her and because she would not marry the 
man of his choice, whom she hated, he had made 
her life miserable, and rather than submit to 
him, she preferred death. In this frame of mind 
she plunged the fatal knife in her breast, com- 
mitting suicide. 

But, ah ! this evidence came — as it often has 
and will come — too late. The father had suf- 
fered death — had died, as he said upon the scaf- 
fold, using his own language, "innocent of the 
death of my daughter." 

Sometime about the year 1800, there lived in 
a rural town in one of the Eastern States, a 
highly respectable family, consisting of father, 
mothe*^ and an only child, a son. The boy's 
father being well to do and prosperous, gave his 
son every possible advantage in his power, and 
he grew to be a young man of promise. About 
the time he arrived at his majority, his parents 
both died, and he was thrown upon the world to 
fight its battles, as many a boy left in comfort- 
able circumstances has been. 



UNTIL YOU BE DEAD. 51 

At this time tliere resided in the same town a 
young lady to whom he was engaged to be mar- 
ried. In the course of time, there sprang up 
between them some differences wliich became 
irreconcilable, and their engagement was broken 
off. The young man, disposing of his property, 
took the proceeds, left and finally arrived in a 
prominent Southern city. While in that city, 
he made the acquaintance of a young man from 
his native State, and after a brief stay they left 
together in pursuit of business in the interior. 
They reached a village and put up at a hotel, 
and while there stopping, they roomed and slept 
together. 

- Late one night, the companion of the subject 
of our sketch had occasion to leave the room. 
His comrade being fast asleep, of course, did 
did not miss him until morning. He wondered 
at his absence, with only part of his clothing, 
and at once gave the alarm. After a seal^ch he 
was found dead in the back yard. The landlord 
had the young man immediately arrested for 
murder. The murdered man's watch was found 
under his pillow, but no traces of his money, of 
which he had considerable, was discovered. 
Suffice it to say, that every fact and circumstance 



62 « HANGED BY THE NECK 

pointed to the accused as the guilty party, and 
he was tried, convicted, and hung for the mur- 
der. Upon the scaffold he protested in lament- 
able and sad words, his innocence of the crime. 
But the law was carried out, and he died a 
felon's death. 

This landlord moved away and finally reached 
Ohio. Twenty -two years passed away. He was at 
last taken sick, and upon his dying bed confessed 
that he committed this murder, and that he had 
also, during his lifetime, murdered seven others. 

Many years ago, in the State of New Hamp- 
shire — and many of those who read these pages 
may recall this crime — the remains of a man 
were found cut in pieces, sewed up in a bag, and 
hid in a piece of woods. An old miser lived 
in these woods. He was known to possess a 
considerable amount of money, and was also 
known as a very eccentric person. People in 
the vicinity who knew him identified the remains 
as those of the old miser. There were living in 
the same town two brothers, who were desperate 
characters, and for years had been a terror to 
the neighborhood. They acted in a suspicious 
manner, and were finally arrested, and after a 
long trial were convicted upon circumstantial evi- 
dence and remanded to jail for sentence. 



UNTIL YOU BE DEAD." 53 

The same day, or the day before they were to 
be arrainged for sentence, the old miser walked 
into the town where those brothers were con- 
fined, to the consternation and surprise of every 
body. 

Now, these men had been proven guilty of the 
murder of this old miser — guilty to the entire 
satisfaction of the judge, the jury, and the 
people of the community in which they were 
arrested 1 And if it had not been for the Provi- 
dential return of the supposed murdered man, 
two innocent men would have been hurled into 
eternity for a crime they never committed. 

Another case of rescue from the gallows may 
be cited here, as being one of deep Interest and 
very pertinent to our subject. 

John P. Phair was convicted in the year 1876 
of the murder of Anna Freese, at Windsor, in 
the State of Vermont, and was sentenced to be 
hung at that place on the 6th day of April, 
1877. Every preparation had been made by the 
Sheriff for carrying out the sentence, and the 
prisoner was preparing to meet his fate. He 
had asserted his innocence from the very hour 
of his arrest. Every effort by his friends and the 



54 "HANGED BY THE NECK 

clergyman in attendance upon him, had failed to 
draw from him a confession. His declaration 
was: "I am innocent; if they hang me, they 
hang an innocent man." Finally, all was in 
readiness, and the hoar for his execution had 
arrived within thirty minutes of the appointed 
time. Suddenly, there was handed to the Sheriff 
the following dispatch : 

" * Delay execution of John P. Phair until 
May 4th, next, — written reprieve will be sent by 
mail.'- 

'' HORACE FAIRBANKS." 

Immediately the dispatch was conveyed to the 
prisoner. It was too much for him ; the poor 
victim at once broke down and wept bitterly, as 
only an innocent, condemned man can weep 
when his life is -spared as he stands under the 
shadow of the gallows. 

This case of Phair was a peculiar one. He, 
too, was [convicted of this murder by not very 
strong circumstantial evidence. In Vermont, a 
reward in amount commensurate with the heni- 
ousness of the crime is generally offered by the 
Town, County, or State, for the detection and 
conviction of the criminal. The law of the State 



UNTIL YOU BE DEAD." 55 

does not limit the amount of such reward ; the 
purpbse being to detect the perpetrator of the 
crime. At once the detectives are stimulated to 
action, and every ejffbrt is made to arrest, convict, 
and obtain the reward. If they are unsuccess- 
ful in ferreting out the guilty — the reward being 
generally large — the inducement is for them to 
weave a net of circumstantial evidence around 
one whom they think may be most available, and 
convict him. Certainly there can be but one 
construction of this practice or law, and that is,, 
it places a premium for the conviction of the 
guilty, and an inducement — in the hands of bad, 
unprincipled detectives — to convict the innocent 
also. 

A reward of two thousand five hundred dol- 
lars was offered for the conviction of Miss 
Freese's murderer. This amount was sulEcient 
to induce the detectives to weave around some 
one a net of evidence, if not positive, probable, 
augmented by circumstances either directly or 
indirectly bearing upon the question of guilt, 
and Phair was selected. 

But, **man proposes and God disposes." A 
portion of the Press, as well as many intelligent 
people of the State, prior to his trial, deemed 



56 •« HANGED BY THE NECK 

the evidence upon which he was held of too cir- 
cumstantial a character to warrant a conviction. 
Nevertheless, he was convicted, and when there 
came a probability of his innocence being estab- 
lished, the people and tlie press began to cry out 
against the system of inducing detectives to cre- 
ate evidence, which endangers the liberty of 
every man, and has a tendency to convict the 
innocent as well as the guilty. 

This poor man is not the only one who has 
been the victim of this law, and brought nigh 
unto the gallows by the detectives working more 
in the interests of rewards than justice, by hav- 
ing woven around them a net of circumstantial 
evidence. No wonder that the people and the 
press of Vermont cry out against this. And 
yet, strange to say, they advocate the death 
penalty, in the face of all the horrors and evils 

which are known to be the result of such a sys- 
tem. 

In order to give the facts and circumstances 
of this case, we take the privilege of inserting 
the following account which appeared in the 
Neio York Times, of April 7, 1877 : 

*' Boston, April 6. — The sensation of the day 
here is the reprieve of John P. Phair, at Wind- 



UNTIL YOU BE DEAD." 57 

Bor, Vt,, and how it was brought about. In the 
forenoon Mr. M. D. Downing, of this city, after 
reading the statement of Phair, published in 
tl>e morning papers, in his olEce, on School 
street, jumped out of his chair and exclaimed, 
' My God, they have got the wrong man. This 
man is innocent.' His words and excited man- 
ner astonished his associates, and as soon as he 
became calm he stated that he went to Provi- 
dence on the morning of June, 1874, and re- 
turned upon a train which left Providence in 
the forenoon and reached Boston about noon on 
that day. His memorandum book was referred 
to at once, and the time was found to be correct. 
On that train, coming to Boston, he met and 
talked with a man whom he firmly believed to 
be Phair, and on reading the statement of Phair 
he saw how important a link he might possibly 
supply. Mr. Downing left Boston by the early 
train, and came back in the forenoon, as stated, 
being anxious to keep an appointment with a 
gentleman in Boston, in the afternoon, on an 
important business matter. Stepping into the 
smoking car at Providence, he rode in that until 
he had finished a cigar. The man whom he 
now supposes to be Phair sat in a seat alone. 



58 "HANGED BY THE NECK 

Taking a seat by his side Mr. Downing soon en- 
tered into conversation with him. The man said 
he hailed from Vermont, whereupon Mr. Down- 
ing, who himself was born and raised in Ver- 
mont, inquired what section the man was from. 
*I am from Rutland,' said the man. *I came 
down yesterday and tried to get work of the 
Screw Company in Providence, but it is so dull 
I could not, and I am goiiig back to Rutland.' 
This led to further conversation. Mr. Downing 
was in a line of business in which he employed 
a great many agents, and being favorably im- 
pressed with the man's appearance, and his 
evident intelligence, he told him if he did not 
• find any work, he had better take an agency for 
Rutland and vicinity for his goods. The idea 
did not seem to impress the man favorably, so 
the subject was dropped. Neither knew, or in- 
quired the name of the other. They talked on 
general topics and separated. Mr. Downing paid 
no particular attention to the murder or the 
trial, and read neither. Of course he could not 
have known that Phair was the man he had met, 
nor had any circumstance or event called the 
matter to mind until he read Phair' s, statement 
yesterday. Thinking it very improbable that 



UNTIL YOU BE DEAD." 59 

two men had left Rutland June 9, 1874, and ap- 
plied to the Screw Company for work, and took 
the same train for Boston June 10, 1874, he con- 
cluded that Phair might be the man. When he 
had reached this conclusion it was nearly 12 
o'clock, and Phair was to be hanged in about 
two hours. 

** Burdened with the thought that he might 
possibly be able to furnish evidence that would 
go a good way toward proving his(Phair's) inno- 
cence, he immediately started to find some way 
to let the Governor of Vermont know of his im- 
pressions before it was too late. He rushed into 
the Glohe office and told his story. The manager 
deemed the intelligence of importance, and 
thought the least that could be done was to tele- 
graph Gov. Fairbanks, of Vermont, of the facts, 
and let him act as he chose in the premises. 
After talking the matter over, both started to the 
telegraph office, and sent the dispatches to Gov. 
Fairbanks, appealing to him to stay proceed- 
ings. An attempt was made to forward these 
dispatches immediatelj^, and it was found, to the 
dismay of all three men, that it was the dinner 
hour of the Montpellier operator and he was 
out. Then word was immediately sent to all 



60 "HANGED BY THE iTECK 

the Vermont offices to ascertain if the where- 
abouts of the Governor were known. The hang- 
ing was to have been at Windsor, and of course 
the Governor had got to be found in time to com- 
municate with Windsor, if he desired to do so. 
Meanwhile the moments were passing away with 
what seemed lightning-like rapidity. Half-past 
12 and 12:45 came. Still no word from Vermont. 
A dispatch was then sent to the Sheriff a little 
before 1 o'clock. Still no word from the Gover- 
nor, and tlie moments were full of suspense and 
anxiety. It had become very exciting in that 
telegraph office. 

'^Finally, at 1:14, word came that the Gover- 
nor, almost providentially it seemed, was in the 
telegraph office at St. Jolinsbury, and had re- 
ceived the dispatch. Then came the rumor that 
he had granted a respite for one week- A little 
later it was known that, on receipt of the dis- 
patches, he at once telegraphed a reprieve to 
Windsor until May 4, thus giving ample time 
to fully investigate the information of Downing, 
and give the condemned man the benefit of the 
doubt. Then the telegraph office became useless 
for the time being. 



UNTIL YOU BE DEAD.'' 61 

*' Mr. Downing is a gentleman of standing here, 
and seeks nothing but to aid in clearing up a 
dark matter. The telegrams from Vermont re- 
port a great reaction there in favor of the accused 
man, and this providential circumstance may 
save his life." 

On the second day of May, Governor Fair- 
banks respited Phair until the first Friday in 
April, 1879 : giving nearly two years' time for 
him to prove his innocence. 

This action of the Governor is explained by 
the fact that there is no power given the courts of 
that State to grant new trials in cases, when there 
is conviction for murder in the first degree. The 
remedy is by special legislation, giving the court 
such power. 

Like the cases before quoted, this man had 
been proven guilty, and the court and jury were 
satisfied of it. But in the Providence of God 
he was saved from the gallows ; and, it may be, 
will go forth from his cell a free and innocent man. 

We might go on and cite case after case as 
strong as those we have given herein, for there 
are many cases where innocent men and women 
have suffered by reason of mistaken identity. 



62 ^'HANGED BY THE NECK 

We do not believe our cause needs to be 
strengthened by a description of such cases, 
either of the past or present. We believe it to 
be a merciful and just one, and therefore submit, 
to any fair and candid minded person, if these 
cases do not bear powerfully in our favor. 

The fact that innocent men have been hung in 
all ages, and will be hung in ages to come, if 
capital punishment continues to exist : the fact 
that men in the past have and in the future 
will be called upon to give up innocent lives 
and suffer for the guilty, clearly, forcibly, and 
conclusivelj^ sustains the position we take — 
that the abolition of capital punishment is an 
imperative necessity. It proves clearly that a 
law, as all hnow^ — and which no one can deny, — 
that punishes the innocent as well as the guilty 
with death, is a law of intolerable oppression. 

**ThOU SHALT DO KO MURDER." Who shall 

** do no murder ?" No man, no woman^ State or 
Nation, by the sanction of law. 



UNTIL YOU BE DEAD." 63 



CHAPTER IV. 

One of the important privileges given to all 
criminals is the right of trial by jury. This 
right has existed as far back as any traces of 
history can bring information of those nations 
which adopted the feudal system. The constitu- 
tion of the United States guarantees a trial by 
jury in all criminal cases, except in cases of im- 
peachment. 

Trial by jury was originally secured in Eng- 
land by Magna Charter. Blackstone says : 
'' Some authors have endeavored to trace the 
origin of jury trial to the ancient Britons, but 
the law seems to have been lost in the obscurity 
of the middle ages." 

Again, Blackstone says : ^*In Magna Charter 
it is more than once insisted on, as the principal 
bulwork of our (England's) liberties, but especi- 



64 "HANGED BY THE NECK 

ally by Chapter twenty-nine, that no freeman 
sliall be hurt in either his person or his prpp- 
erty." This was created because *'the ancient 
ordeals of red hot iron and boiling water, prac- 
ticed by the Anglo-Saxons, were the methods to 
test the innocence of a party accused of crime," 
— a barbarous usage that *'gave way to the 
wager of battle in the days of the Normans — a 
practice that fell into disuse in the thirteenth 
century, when Henry the 11. introduced into the 
assizes trial by jury."* 

• 

In the constitutional convention, held at Kings- 
ton, New York, on the 20th of April, 1777, it 
was declared that : "This convention doth fur- 
ther ordain, determine, and declare, in the name 
and by the authority of the good people of this 
State, that trial by jury in all cases in which it 
hath heretofore been used in the colony of New 
York, shall be established and remain inviolate 
forever." 

Often do we find jurymen, who under oath 
have passed upon the life of some victim, con- 
signing him to the gallows, step from the jury 
box, and gladly sign a petition asking the par- 

* let Bouvier'a Law Die, page 770. 



UNTIL YOTJ BE DEAD." 65 

dolling power to pardon the one they have con- 
victed. Why do they do this? Because the 
hard and cruel law gives them no choice under 
oath, in the face of evidence conveying guilt, to 
say by their verdict that the accused shall not 
be hung. But they can say as citizens that they 
do wish a pardon granted and are ready to ex- 
ercise a christian duty toward a guilty fellow 
being whom they have convicted. 

One of tlie most eminentjurists who ever lived, 
in writing of jurors, says : " Some minds are so 
skeptical that they receive nothing as true which 
is not proved by plain and direct evidence, or 
established upon mathematical demonstrations ; 
while others readily adopt the most absurd no- 
tions though unsupported by anything like evi- 
dence, and destitute of all foundation in reason 
or the nature of things. And we not un fre- 
quently find the opinions of the latter class as 
immovable as those which are the result of the 
most laborious investigation." 

It has been claimed by men of great ability 
and legal learning, that the average juryman in 
this country is not fitted for so momentous and 
important a position as to sit upon murder trials 
and give judgment upon the life of a fellow being. 



66 "HANGED BY THE NECK 

Curran said, *' it was of the utmost importance 
— it was imperative for the good of society, for 
the good of the king — that no man should serve 
as a juryman in any branch of the criminal law 
unless he was the owner of real estate." It 
was in this way, he claimed, the jurors became 
more interested, more capable of assuming the 
duties of a juror; and although he might, to a 
certain degree, be unlearned, yet, sitting as an 
arbitrator between the king and a subject the 
king was seeking to convict of any crime that 
would, if found guilty, send him to the guillo- 
tine, he was better fitted for a juryman's duty. 

The wisdom displayed by and through the 
jury system of our country, in the trial of crimi- 
nals, is of great value both to the prisoner and 
to the people. Our law has wisely placed this 
mode of deciding the fate of every person 
charged with crime in the hands of twelve men. 
While there is exercised much care in the selec- 
tion of jurors, who serve in capital cases, we 
claim there is not taken that degree of caution 
there should be in obtaining for our criminal 
juries, men who are really honest, intelligent, 
and thoroughly impartial in their opinions. 



UNTIL YOU BE DEAD." 67 

We arraign prisoners for murder in our Courts 
of Justice, and confront them with those who 
are to become their judges and say whether they 
shall live or die. They are asked to consider 
them innocent until they are proven guilty. But 
how often, for want of proper intelligence and 
unbiased feeling, are men found in the jury box 
who ought never to be there ? We need not 
mention here the fact that there are, too often, 
brought to bear upon jurors arguments utterly 
at variance with the facts by the prisoner's coun- 
sel in order to obtain a verdict of acquittal. 
How often eloquent lawyers depict the awful 
scenes upon the scaflfbld, and draw sad pictures 
to work upon the«sympathies of the jurors, for 
the purpose of obtaining either an acquittal 
or a less degree of punishment than attaches to 
the offence charged in the indictment. This is, 
we claim, the inevitable result of the enforce- 
ment of the death penalty. No juror would for 
£i moment — in the light of facts suflBcient to con- 
vince of guilt — allow his feelings to be influenced 
by any power brought to bear upon him if there 
was no such method as hanging. It is the 
"awful responsibility" of taking from a human 
being a life by their verdict, that makes jurors 



68 "HANGED BY THE NECK 

seize upon the most trifling pretext as an excuse 
to either acquit or spare the life of the criminal. 

Stand in any court room and look into the 
faces of jurymen empanelled to try a murderer, 
and is it not true that, in almost every case, we 
can discern men sitting in the jury box unfitted 
for such an important and solemn position ? 
Can we not see men who, by their very counte- 
nances and general appearance, are utterly in- 
capable of grasping those questions which may 
call for calm, cautious, unbiased, and deliberate 
opinions, upon which the fate of some poor un- 
fortunate man or woman may hang? Then, 
again, we see there men who show in their faces 
unmistakable evidences of the '* awful respon- 
sibility" of being compelled to perform such an 
unpleasant duty. 

But we do not propose to follow this subject 
— fraught with so much importance — any further 
in this connection, We turn to sadder scenes, 
and point to the gallows — point to that place 
where men and women are called upon to sur- 
render that life which we claim none but God 
has the right to take. 

We present the account of the execution of 
a poor condemned man, which was taken from 



UNTIL YOU BE DEAD.'* 69 

The Neto York Evenivg Post, of the day named 
tberein, and ask Christian men and women — who 
must shudder at such sad scenes — to consider 
this case carefully, and answer the question, 
''Does not humanity demand a repeal of the 

law executing men and women?" 

"THE GALLOWS. 

"the execution of LINDSAY— his PROTES- 
TATION OF INNOCENCE ON THE GALLOWS. 

" Syracuse, February 11, 1876. 

*' Preparations for Owen Lindsay's execution, 
at the Penitentiary, were made yesterday after- 
noon. The gallows was the same which was 
used at the hanging of Pralich here, Ecker at 
Fonda, and Smith at Watertown. 

*' Lindsay's daughter spent several hours with 
him, and his wife, father, and other relatives 
were with him much of the time during the day. 
The final intervietv with his family took place at 
nine o'clock this morning ; it was very affecting. 
Lindsay protested his innocence, and expressed 
no fear of the hereafter. He summoned his own 
pastor, the Rev. William Manning, of Roches- 
ter, who last evening administered spiritual con- 
solation, and besought him not to die with a lie 



70 "HANGED BY THE NECK 

on his lips, and to tell the whole trath ; but fre- 
qnent beseeching only brought forth the assur- 
ance that he was innocent. 

"Vader, the accomplice, on whose testimony 
Lindsay was convicted, stoutly reiterated the 
entire truth of his evidence. The prisoner made 
arrangements for the temporary lodgment of his 
body at Oakwood vault, and for a quiet burial 
at his old home in Lysander, at a future time. 

"At the parting with the superintendent of 
the Penitentiary and others, the prisoner asserted 
his innocence, bursting into tears. The prisoner 
did not go to bed during the night, but chatted 
familiarly with the officers and reporters. 

'' At a quarter to seven o'clock this morning, 
he retired, and slept one hour, when his wife 
awoke him. He was allowed two hours with 
his family. At twenty minutes to ten the sheriff 
ordered him to prepare foi: the last scene. He 
dressed himself carefully in a suit of black. 
The death warrant was iread to him by the 
sheriff, and a brief prayer was made by the 
Rev. Mr. Manning. 

"At half-past ten the blackcap was drawn 
over his face : one minute later the rope was cut 
and the body fell. :He died in ten minutes. 



UNTIL YOU BE DEAD." 71 

** When standing under thegallowSj Lindsay said, 
in a firm tone of voice : * I am innocent, gentle- 
men, of the crime ; 1 know nothing of the mat- 
ter whatever ; I never had a lisp said to me in 
regard to it in the world. I am as innocent of 
this crime as any man in this company. lam 
innocent before man and God,^ " 

Here was a man convicted upon the testimony 
of an accomplice, nnd as he stood upon the scaf- 
fold — yea, upon the very threshold of eternity — 
he proclaimed to the world he was about to 
leave, and in the presence of the God before 
whose bar but a short time would elapse ere his 
spirit was to appear, "I am innocent before 
man and God." But the sheriflF, in obedience 
to the law of New York, launched him into 
eternity, and almost before the sound of the poor 
culprit's* words of protest had died upon the 
ears of his hearers, he was dangling in the air, 
giving up it may have been an innocent life to 
satisfy the justice of the law. 

Must we listen to such dying declarations as 
these, and heed them not ? Must we be em- 
powered by law, at the same moment they are 
uttered, to launch the soul of the being who 
utters them into eternity ? 



72 "HANGED BY THE NECK 

This is the question to be answered by the 
people of this Christian land. The day draws 
nigh for the answer. 

At an execution whicli took place in Massa- 
chusetts, during the spring of 1876, the prisoner, 
— after he had been placed upon the scaflFold, and 
only a few moments before the State, by the 
authority vested ia it by law, had hanged this 
man — raised his hand, and with his face turned 
heavenward, said : " I declare to all men that I 
die innocent of willful murder ; I die cherishing 
no feeling of resentment toward any one ; I die 
forgiving all the world for any wrong I have re- 
ceived. It is hard, but 1 freely do it." To his 
counsel he said: *' Try and keep track of this 
matter. I liope that in time, and I am assured, 
that it will be cleared up. I feel that in six 
months men will say, ^ If toe haduH hanged that 
man toe shouldnHJ* " 

And at the same time the Minister of the Gos- 
pel who administered to the poor fellow spiritual 
consolation, made the following prayer, as the 
sad act was about to be consummated : '* O Grod, 
we confess Thy power and wisdom and Thy 
mercy. Thou art our Creator and the Creator 



UNTIL YOU BE DEAD/' 73 

of this man, who is so soon to meet Thee. Bless 
the Slate that, for safety and security, is ahout to per- 
form this solemn and awful act. Have mercy on this 
man. Meet him now and conduct him to Thyself. 
For the sake of Jesus Christ, our Sayiour. 
Amen. Amen." 

Sent by the State out of this world ! What 
consolation can there be to the people in such a 
prayer for the soul of the murderer invoking 
the Divine presence in the face of such scenes? 

Ah ! how true is the language, ^^If an innocent 
man suffers, society cannot restore him to life.^^ 

These two men were presumptively innocent. 
We do not question the purity or the motives of 
those who were the jurymen, or the judges who 
presided over these trials. They had solemn 
duties to perform and were undoubtedly con- 
vinced of the guilt of the condemned. But it is 
the law that is at fault. We say, that in view 
of the scenes at these two scaffolds, and the 
protestations of innocence there made, it was 
murder by the State when the hangman's rope 
was placed around the necks of these two men 
that, in the twinkling of an eye, took the lives 
which God had given them. 



74 ** HANGED BY THE NECK 

Surely society cannot return to them their 
lives, and upon the State may be the blood of at 
least one innocent man. 

As we have said, we find most men who wish 
to keep these statute laws in force, after having 
been driven to the wall by the powerful battery 
of charity^ flee to the Bible, and there endeavor 
to find Divine authority and argument to sustain 
their theory. First, they go to the old testament, 
and take the Book of Genesis, as we said before, 
and quote the 6th Verse of the 9tli Chapter, 
"Whoso sheddeth man's blood, by man shall 
his blood be shed." Then, to the 20th Chapter of 
Exodus, 13th Verse, and there find, '' Thou 
Shalt not kill." Then, to the 24th Chapter of 
Leviticus, and the 17th Verse, '' And he that 
killeth any man shall surely be put to death." 
These passages, quoted as they are, seem to 
make a strong case for capital punishment. But 
taken in connection with others, and the mean- 
ing that we put upon them, fail utterly, viewed 
in an intelligent light, to prove that God in His 
goodness intended after Christ came that this 
punishment should be continued. 

Against these, therefore, we have the New 
Testament teachings founded in love, and the 



UNTIL YOU BE DEAD." 75 

most severe Divine decree for the punishment of 
murder that can be found therein, is found in 
the 21st Verse of the 5th Chapter of Galatians, 
where Paul says : '* Envyings, murders, drunk- 
enness, revelings, and such like: of the whicli 
I tell you before, as I have also told you in time 
past, that they which do such things slutU not in- 
herit the Kingdom of God.^^ 

This was to be the Divine punishment of the 
murderer. After Christ came he was to be dis- 
inherited and excluded from the Kingdom of 
God. This language was from Paul by author- 
ity as a minister of Jesus Christ, and is so plain 

I 

that the most prejudiced mind must recognize 
it as conclusive. It was not modified nor gain- 
sayed in any way, or at any time. Love was to 
be cultivated, charity inculcated among the 
people. And this doctrine was reaffirmed, as 
found in the 22d Chapter of Revelation, 15th 
Verse : ''For without are dogs, and sorcerers, 
and whoremongers, and murderers, and idola- 
ters, and whosoever loveth and maketh a lie." 
These were crimes which shut men out of the 
Kingdom of God. It does not appear that sor- 
cerers and idolaters were to be cast out and 
murderers executed. Not at all. The same 



76 "HANGED BY THE NECK 

Divine punishment was to be meted oat to the 
whole of this class of criminals. Thus we find 
that these are the only two passages in the New 
Testament where the punishment of the mur- 
derer is alluded to in emphatic terms. 

If it had been Christ's intention to perpetuate 
the doctrine taught in the time of Moses — the 
shedding of blood for blood — He would have 
said so in so many words while upon earth. As 
the great teacher of mankind, he would un- 
doubtedly have commissioned some of His 
apostles to have proclaimed it and caused no 
ambiguity to exist upon this point. He ex- 
pressly said, '*Thou canst not make one hair 
white or black." 

In the old scriptures there was no hanging for 
the crime of sorcery or idolatry. These were 
great crimes, great as murder, as defined by the 
New Testament, for we find them spoken of in 
connection with murder. Hence we can infer 
that no Divine right was intended to be given to 
man, whereby he was to exercise the power over 
the life of his fellow. What did our Saviour 
mean, when He said, ''Father /or^ive them, for 
they know not what they do ?" We believe He 
meant to abrogate that law which was so cruel 



UNTIL YOU BE DEAD." 77 

in the time of Moses, and which through igno- 
rance, sin, superstition, and a love for bloody 
retaliation, followed down the line of ages until 
now it is the doctrine still unhappily in exist- 
ence in modern times. Aye 1 He meant more. 
He meant to proclaim to the world charity, 
mercy, love, forgiveness : all that is so noble, so 
sweet, and so holy in His divine nature. 

It is asserted that if the law of capital punish- 
ment were to be repealed, solitary confinement 
would not be a sufficient terror to those who com- 
mit murder ; that the gallows presents a horror 
which nothingelse can. This, to a certain extent, 
is true. But, aside from any consideration of 
mercy, is not solitary confinement during the 
natural life to be dreaded more, when it is fully 
considered, than the prospect of being executed, 
taking into account the chances of escape which 
surrounds the one and does not the other ? 

We know that the life of the murderer is as 
sweet to him as that of any being, and that nine 
out of ten would, if given the opportunity, pre- 
fer the sentence of solitary confinement to that 
of death. But such a confinement is a very dif- 
ferent and more severe sentence than that of 
hard labor for life, which the prisoner will fully 



78 "HANGED BY THE NECK 

realize when be comes to experience it, for to be 
placed in solitary confinement for life, without 
hope of escape, — shut out from the world and 
virtually dead to it*— would become more dread- 
ful than the hangman's rope. 

Recently a woman in the State of Ohio, who 
had originally been sentenced to be executed, 
and such sentence without any solicitation on her 
part at the time, had been commuted to imprison- 
ment in solitary confinement for life, appealed to 
the courts to be allowed to go forth from prison 
and be executed. She had for some years suf- 
fered such confinement, but as time passed she 
became weary of such a life, and preferred death 
to it : it was worse than death, and she was willing 
to give up her life rather than sufl^jr the torture of 
mind throughout a hopeless future. The Court is 
now considering her case, and the people of this 
country are anxiously waiting to see the final 
result. Thus we see, in one case at least, that 
our point is sustained, and fully believe, that if 
solitary confinement was the penalty for murder 
instead of death, it would be as great a terror 
to the murderer as the gallows. 



UNTIL YOU BE DEAD." 79 



CHAPTER V. 

The plea of insanity, in cases of murder, has 
become one which is seriously troubling the 
mihisters of justice. The fact that so many 
murderers escape punishment by reason of well 
conceived and deep laid plans to feign insanity, 
is bringing our law-makers to consider how they 
may so frame laws as to reach each particular 
case. Guilty men escape the gallows, who have 
successfully pleaded this absurd and deceptive 
theory of a temporary insanity, caused many 
times by the advice of unscrupulous lawyers who 
conduct their cases. The courts are constantly 
annoyed by the cunning of this class of crimi- 
nals, and jurors are perplexed, mystified, and 
too often deceived by this feigned insanity, until 
the course of justice has sunk, in many States, 



80 " HANGED BY THE NECK 

into opprobrium. How often is the question 
asked, as murderers are acquitted because of the 
plea of temporary insanity, *' Wlien are our al- 
ready overburdened Courts of Justice to be free 
from this class of cases ?" We answer not until 
the law of capital punishment is abolished, and 
this class of men who dare to act as only guilty 
men can act to save their necks from the halter, 
are made to know that to commit a murder and 
at once become insane, is a thing that neither the 
courts, juries, nor society will tolerate. 

We wish to give a case in point, which occur- 
red in the State of New Jersey in 1875. A man 
of prominence and respectability walked into 
the office of a rival editor and deliberately shot 
him. The victim, after lingering for nearly a 
year, died, — soon enough to make the crime 
murder in the first degree by the statute of New 
Jersey. The man who committed this deed was 
brought to trial, and the only defense which 
could be pleaded with any degree of success was 
insanity, If one day before the shooting of his 
rival, he had been charged with being insane, 
he would have taken it as an insult. Yet the 
jury that tried him, to the astonishment of al- 
most everybody, acquitted him on the ground 



UNTIL YOU BE DEAD." 81 

that he was actually insane when he committed 
the act. Does any one suppose that, had there 
been no hiw to hang men in New Jersey, he 
would have been acquitted when the shooting 
was admitted to be really without cause? Not 
at all ; for no man was ever more guilty of mur- 
der than he. 

Yet the jury, like hundreds of juries before 
this one, gave him the benefit of existing doubts, 
and left him loose upon the world. What hap- 
pened afterwards? One week after his acquit- 
tal, a comyiission of physicians and another jury 
were selected according to law to ascertain if he 
really was insane. This commission unanimously 
said he was not, and he walked out a free man 
to enjoy the comforts of life. Justice again 
mocked, because the sympathies of jurymen 
would not let them hang a fellow-being upon 
testimony which, if he could have been im- 
prisoned for life, would have placed him in the 
State prison. 

Now, we often see the fact demonstrated that 
the death penalty works damage to society, and 
wrings from justice her subjects. We see de- 
monstrated that juries will do anything consci- 
entiously to save a man from the gallows. We 



82 "HANGED BY THE NECK 

see guilty bad men turned loose upon society, 
and human life becoming, as it were, a plaything 
to these wretches. 

Tlierefore, when we reflect upon these import- 
ant facts, what can be more evident and true 
than this : that the welfare of the people, as well 
as Christianity, demands the abolition of capital 
punishment. 

How many sad spectacles of crimes eminate 
from the curse of liquor ? How many men have 
been sent upon the scaffold for committing mur- 
ders when they were drunk, and, therefore, non 
compos menlis. 

Drunkenness has been defined by many emi- 
nent jurists to be a species of madness, or " de- 
mentia offeclata^" The law holds the drunkard 
who commits murder to the same responsibility 
as if he were perfectly sober, and knew what he 
was doing. It is a rule of common law, that 
drunkenness is no excuse for murder. When 
the poor forsaken Reynolds a few years ago 
awoke in a cell in the Tombs of the City of New 
York, from a drunken debauch, and was in- 
formed that he had committed an atrocious mur- 
der, he was horrified, for when it was committed 
he was mad from liquor and knew nothing of it. 



UNTIL YOU BE DEAD." 83 

And wlien he subsequently exclaimed through 
the grates of his cell door, in his delirious con- 
dition, partially in jest and partially crazed with 
fear, that ** hanging was played out in New 
York," a new thirst for the blood of murderers 
at once seized the people, and thus capital pun- 
ishment seemingly found a justification all over 
this land. 

We do not crave any sympathy for the drunk- 
en murderer. The cause of his maddened con- 
dition when he commits a murder under the 
influence of liquor, is self-inflicted, and, there- 
fore, he is responsible, and should suflfer the 
consequences of his acts. 

Very many readers of this work will remem- 
ber the celebrated case of Henrietta Robinson, 
the veiled murderess. She was indicted for the 
murder of Timothy Lanagan by poison. The de- 
fence was drunkenness ; that at the time she ad- 
ministered the poison from which he died, she 
was intoxicated, and hence irresponsible for her 
act. She was ably defended, and nothing that 
could be done was left undone in the attempt to 
obtain for her an acquittal. But all efforts were 
futile, for she was convicted of murder in the 
first degree. 



84 "HANGED BY THE NECK 

This trial took place in the Citj' of Troy, New 
York, before Judge Harris, in the month of 
May, 1854. The whole country became excited 
over it. Like the Hartnng case, it involved the 
life of a woman, and the ej^es of the public were 
again turned upon a case where a woman, if 
convicted, would be hanged. 

Again, to prove that Judge Harris was an im- 
plied opponent of the law of capital punishment, 
we quote briefly from the able charge he deliv- 
ered to the jury in this case. He said: ''It is but 
once, perhaps, in the course of a man's life, that 
he is called upon to decide the fate. for life or 
death, of a fellow-being, when, in the impressive 
language of the ceremony which initiatesyou into 
your ofiBce as jurors, the life of a/eUoto creature is 
given in charge to itoelve men. The prerogative to 
determine life, belongs to the source of life itself* It is 
the highest power that man, himself the subject of mor* 
tality, can exercise, to assum^e this prerogative and de- 
clare the life of his fellow man forfeited. This fearful 
responsibility rests upon you." 4v * * * 
'' With the policy or toisdom of the law which de- 
mands life as the penalty of crime, neither you 
as a jury or we as a Court, have anything to do. 
Were toe sitting as legislators, it might become us to 



UNTIL YOU BE DEAD." 85 

express our opinion on this subject ; bat placed here, 
as we are, to administer the law, it is oar duty 
to take it as we find it." 

Sustained by the common law of this land, 
and by the statute law of this and most of 
the States of this Union, Judge Harris, in 
charging the jury upon points of law, said : 
*'That if the prisoner was intoxicated, even to 
such an extent that she toas unconscious of tohat she 
was doing, still the law holds her responsible for. 
the act." * ♦ * ** Her self-inflicted 
insanity must not be allowed to avail her. The 
law imputes to her a murderous intent." 

Thus it becomes an established fact, supported 
by law, that capital punishment is enforced 
equall}' against the miserable wretch wlio com- 
mits murder when not himself, and knows not 
what he does, whose faculties and senses are 
paralized, whose better nature is overcome by 
the evil in him, brought out and maddened by 
liquor, as against tliat murderer wlio, in the full 
possession of his faculties, premeditatedly, wick- 
edly, intentionally, commits a murder with full 
knowledge of what he is doing and what will be 
the inevitable consequences of his awful crime. 

The Christian Union, in a recent able article on 



86 " HANGED BY THE NECK 

capital punishment, thus deals with it: ''The 
effect of the wearisomely repetitious discussion 
of this subject has been steadily to weaken and 
to nullify the once popular arguments for capi- 
tal punishment. The gallows, a more savage 
relic of barbarism than the whipping-post, is 
defended only by a traditional conservatism, 
and a sentiment of vengeance. The Biblical 
argument is abandoned. The fact that Moses in 
the wilderness, where prisons were impossi- 
ble, prescribed the deatli penalty for aggravating 
crimes, is no reason why it should be maintained 
in a settled Christian community after three 
thousand years development. The argument 
from necessity never deserved respectful consid- 
eration. To say that the people of the State of 
New York are incapable of protecting them- 
selves from a single murderer except by strang- 
ling him, is to deny their competence to deal 
with the simplest problems of civilization. The 
argument of justice is specious but unsound." 
* * * * * *' The supposed deter- 
rent influence of the gallows is not substantiated 
by the facts of history. Crime has steadily de- 
creased with the decrease of capital punishment ; 
and it surely devolves upon the advocates of the 
death penalty to show that the influence of terror 



UNTIL YOU BE DEAD." 87 

which has not been adequate to deter men from 
small crimes, will deter them from greater ones." 

One of the important, and probably the most 
serious question to be decided in connection 
with the abolition of capital punishment, is, 
what method of punishment is the best to be 
proposed for the convicted murderer ? We say, 
" Imprisonment in solitary confinement 
FOR LIFE." Then put the pardoning power 
under the combined control of the Governor and 
the highest judicial power of the State, which 
shall constitute a Court of Pardon, forbidding it 
hearing or receiving a petition for the pardon of 
any murderer under sentence for life, for the 
space of twenty years or more, as may seem 
just and proper, unless there is positive proof, 
to the satisfaction of the Court of Pardons be- 
fore which such petition shall be presented, that 
tliere is newly discovered evidence, or upon the 
confession of some person wlio did commit the 
crime for which the petitioner is serving a life 
sentence. In this way there could be no fraud 
or deceit practiced by the criminal, because, if 
a confession should be made by one that he 
committed tlie crime, he would stand in the 
place of the already condemned ; if by newly 



88 "HANGED filT THE KECK 

discovered evidence, the Court of Pardons 
should be fully and unanimously satisfied that a 
new trial could be had with safety, or a pardon 
granted to the accused. Tliereby justice to crim- 
inals would be meted out, society and the State 
be fully satisfied and protected, and the mur- 
derer in his solitary confinement, if guilty, could 
in agony exclaim — 

** Til dark, 'tis cold, and hung with gloom, — 
How can I in this daogeon itay ?" 

As yet ho State has enacted a law that is what 
it should be. Among those which have abol- 
ished capital punishment, the best law, proba- 
bly, is the one passed February 21st, 1876, in the 
State of Maine. We insert this law in full, be- 
lieving that if it can be read generally by the 
public, it will have a tendency to eradicate the 
prejudice of very many upon this highly im- 
portant subject. 

** CHAPTER 114. 

''AN ACT TO ABOLISH THE DEATH PENALTY, 
AND TO REGULATE THE MANNER OF AP- 
PLYING FOR PARDONS IN CERTAIN CASES. 

** Be it enacted, dtc, as follows : 

^^ Sec. 1. The penalty of death, as a punish- 
ment for crime, is hereby abolished. 



UNTIL YOU BE DEAD." 89 

" Sec. 2. All crimes now punishable with 
death, shall hereafter be panishable by impris- 
onment at hard labor for life. 

" Sec. 3. Whenever any person who has been 
sentenced under the second section of this act 
shall desire to obtain a pardon, or a commuta- 
tion of such sentence, he may present a written 
request to the Justices of the Supreme Judicial 
Court, in term time or vacation, asking that ap- 
plication therefor be made to the Governor in 
his behalf, and shall therein set forth, specifi- 
cally, the grounds on which such application 
for pardon or commutation of sentence is re- 
quested, and the facts which he expects to prove 
in support of the same, together with the names 
and residences of the witnesses by whom he 
expects to prove such facts ; and with such re- 
quest he shall present the affidavits of such wit- 
nesses, and a copy of all the evidence taken at 
the trial in which he was convicted, which evi- 
dence shall be taken and preserved as provided 
in section seven, Chapter one hundred and thirty- 
five of the Revised Statutes. 

^^ Sec. 4. If, upon examination of said request 
and the affidavit therewith presented, said justi- 
ces shall be of the opinion that new and material 



90 '« HANGED BY THE NECK 

evidence has been discovered, which v/sls not 
known, and could not, by the use of due dili- 
gence, have been obtained at the time of the 
trial, they shall appoint a time and place for a 
hearing thereon, and order notice to be given to 
the Attorney Greneral and to tlie County Attorney 
of the county, in which said person was con- 
victed, that they may appear in behalf of the 
State. 

^^ Sec. 5. At such hearing no evidence shall be 
deemed pertinent, except such as has been dis- 
covered since the trial, and such as relates to 
material facts, tending to show that such person 
was wrongfully or erroneously convicted, or that 
he is innocent. 

^^ Sec. 6. If upon all the evidence said justices 
shall be of the opinion that such person was 
wrongfully convicted, or that he is innocent of 
the crime of which he was convicted, and that 
an application should be made for his pardon, 
or for a commutation of his sentence, they shall 
so order, and thereupon the clerk of said court 
for the district in which said hearing is had shall 
make up a record of the proceedings had on 
such request, and transmit a copy thereof, and 
of all the papers in the case, to the Governor, 



UNTIL YOU BE DEAD." 91 

together with an application to the Governor, 
made by him in behalf of such person under 
the order and direction of said justices, for such 
pardon or commutation of sentence. 

** Sec, 7. On receipt of such application, the 
Governor may, with the advice and consent of 
the council, grant a pardon, or a commutation 
of sentence, upon such conditions and with such 
restrictions and limitations as may be deemed 
proper, and to carry the same into elBfect may 
issue his warrant directed to all proper oflBcers 
who sliall serve and obey it. 

"Approved, Feb. 2l8t, 1876." 

As we said before, those who favor the death 
penalty plead in its defence the Divine right to 
execute men. We remember that for more than 
two centuries human slavery in America was 
defended by its ablest champions as a Divine 
institution, existing by Divine right. We know 
that Brigham Young and his fellow polygamists 
defend polygamy upon passages selected from 
the Bible quite as relevant as those selected 
in defence of capital punishment : that they 
claim it is an institution which existed before the 
Christian religion, and is worthy of acceptation. 
We know that every bigamist, when arraigned 



92 "HANGED BY THE NECK 

in our courts for bigamy, can plead the same 
Divine authority in support of his crime. He 
can open the Bible and point to the career of 
King David — one of the grandest characters of 
the Old Testament — with six wives, and can point 
to King Solomon with eiglity wives and concu- 
bines. These instances, he declares, should be 
regarded as very strong biblical authority for a 
plurality of wives. 

If slavery, polygamy, and bigamy are in con- 
tradistinction to the tastes and religious senti- 
ments of an intelligent and enlightened people, 
is not the execution of human beings for the 
crime of murder equally so ? The Divine right 
to execute human beings is no greater than 
that which exists for slavery, polygamy and 
bigamy. 

What is asked in this matter is consistency. 
The American people abolished slavery against 
the strong deep rooted prejudice and opposition 
of a majority of the people, because it was in- 
imical to the religious and moral sentiment of 
the nation. They demand that polygamy shall 
be wiped out, because it is loathsome and a 
curse to society and the nation. Society is pro- 
tected by the enactment of stringent laws for 



UNTIL YOU BE DEAD." 93 

tbe punisliHient of bigamy : it demands that 
such laws shall be faithfully and rigidly execu- 
ted ; yet men say we must not abolish the death 
penalty, because it is the only safeguard against 
an increase of the crime of murder. We say 
this is erroneous. 

For one moment let us pause and look upon 
the awful scenes enacted upon the platform 
under the gallows. There stands a condemned 
human being — a man created in the image of his 
God — a man in the possession of a life that only 
his Father in heaven can give — a life that no 
human law should authorize any power to 
take : faint and quivering beneath the fatal 
noose, compelled by a human law to meet death, 
compelled to bid farewell to all things on earth ; 
and while standing there, as the quickly pass- 
ing moments flee, each bringing his time shorter 
and shorter, his only thoughts connected with 
the great unknown and unexplored eternity, 
must be of that pardon he hopes to receive at 
the bar of God. We behold him as the black 
cap is drawn over his pallid face ; we see the 
fatal rope adjusted about his neck ; we hear the 
faint inaudible prayer from his quivering lips ; 
we watch the sheriff as he stands aside while a 



94 "HANGED BY THE NECK 

prayer is offered up in behalf of the soul about 
to go to its maker, it may be by some clergyman 
with a heart too full for utterance, or by one 
who sanctions the very law which creates these 
scenes ; we see the sign given, the rope cut, and 
a human being wreathing in pain — strangled to 
death ; and in the twinkling of an eye, we know 
that a soul has been by the power of a human 
law sent forth from mortality to immortality ! 
We turn in sadness from this most terrible of all 
sad acts, impressed with the horrors of such a 
law, and probably ask the question, " la all this 
right r' 

But the scene is not yet ended. We see ap- 
proaching that human form suspended by the 
neck between heaven and earth, a physician, 
employed to pronounce the victim dead before 
the oflScer of the law dare touch that body : 
we see it let down, and the rope that did the 
fatal work taken from his swollen, blackened, 
neck ; we see the lifeless body, murdered by 
law, delivered to sad friends or cast in the Pot- 
ter's field. And this is the end of a criminal ! 
This is the end of a man — one loho may be inno- 
cent and the victim of a law too inhuman for tol- 
eration in a Christian land. The public press 



UNTIL YOU BE DEAD." 95 

announce the execution, faintly depicting the 
event which but few read, save those. whose im- 
aginations are of a naorbid tendency. Thus the 
criminal goes out of this world as an example 
forsooth to those who would do murder ! 

John Bright has truthfully said that '* capital 
punishment is one of the most barbarous meth- 
ods that the most barbarous nations can de- 
vise." 

Iji bowing humbly and obediently to the law- 
making power, let us say that, so long as there 
remains a law in any State in the Union which 
gives the power to the authorities to hang the 
condemned murderer for his crime, let that law 
be faithfully and fully executed. Let those 
who are opposed to capital punishment take no 
dishonorable steps to obtain its repeal. On the 
contrary, let the law be obeyed, but by and 
through mercj', kindness, human charity. Chris- 
tian feeling, love for our fellow-man, recogniz- 
ing the Divine right only to take man's life, let 
the humane persistently assert the enormity of 
the practice, and strive to formulate public sen- 
timent in favor of a repeal of the death penalty 
that, sooner or later, must take place. 



96 *' HANGED BY THE NECK 

In concladirig this subject, let us ask those 
who sanction this lavr of judicial murder, — 
those wlio say, ** I am in favor of choking men 
and women to death," (for if you hang the one 
you must the other, no law can be consistently 
made to discriminate between them,) what good 
comes of the enforcement of such a law, or the 
continuance of such a practice? What does 
society gain ? What precept of the law of God 
is satisfied or avenged ? What demand of jus- 
tice is complied with by deliberately, legally, in 
a Christian land, erecting a scaffold, and in the 
sight of human kind, leading poor unfortunate 
wretches upon it that a sheriff may legally choke 
them to death ? 

Turning from these horrible scenes, do men 
fold their arms more complacently and rest more 
easily? Do they feel more secure from the pis- 
tol or the dagger? Does hanging place tempta- 
tion further from the dangerous classes, or does 
society become purer, better, or more safe? On 
the contrary, it shudders at the scenes, but has 
not the moral courage to speak out against them. 

The old maxim, *' ah assuetis non ejit injuria^ — 
no injury is done by things long acquiesced 
in — is not applicable to this most solemn sub- 



UNTIL YOU BE DEAD." 97 

ject ; but "ceguMwi et honum est lex legiim^^ — what 
is just and right is tlie lata of laioSj carries with it 
power and authority, and is the back bone of 
our argument for tlie repeal of this law. Justice 
and right— justice demanding adequate punish- 
ment for all crime committed ; right, that no 
man shall pay the penalty of his crime by death 
and assert the merciful demands of society. 

Away with the gibbet ; away with the rope ; 
away with the black cap ; away with death war- 
rants ; away with all the inhuman, unchristian 
mechanism used in obedience to a law founded 
upon injustice, and against every sense of a 
civilization so powerfully working to create a 
higher and nobler manhood, in a country where 
there exists a Christian civilization elevating the 
iuman race. 



APPENDIX. 



• • ■ 



The laws of the different States, except those hereto- 
fore named, so far as we have examined them in relation 
to murder, are much alike. By a careful research, we 
find the statutes throughout satiction the same principle 
and mode of punishment, the aim being to execute the 
murderer. 

In the States of Iowa, Maine, Michigan, Rhode Island 
and Wisconsin, the death penalty has been abolished, 
and imprisonment for life sul?stituted In Michigan, 
the criminal is placed in solitary confinement at hard 
labor. In the States of Iowa and Wisconsin the sen- 
tence is confinement at hard labor. In the States of 
Georgia, Kentucky and Texas, there are special enact- 
ments established in mitigation of the death penalty, 
and special powers are delegated to the courts and 
juries, whereby they may exercise such clemency as the 
facts and circumstances of each will permit. 



n APPENDIX. 

In the other States, upon a person being found guilty 
of a capital offence, the statutes impose the death pen- 
alty, and vest all discretionary powers with the Gover- 
nors or Courts of Pardon. 

We would add, that we have been unable to get any 
very accurate information as to the number of persons 
executed in this country, but have received the follow- 
ing official statement as to the convictions and execu- 
tions for England and Wales during the years therein 
named : 

"A return of tlie persons sentenced to death for mur- 
der in England and Wales in the years 1873 to 1876 is 
given in a Parliamentary paper recently issued. In 
1873, 18 persons were sentenced to death, and 11 were 
executed, two of whom were women. In 1874, the 
number sentenced to death was 25, of whom 16 were 
executed, two of them being women. In 1875, the 
capital sentences pronounced were 33, and the number 
of persons executed 18, one of whom was a woman. 
In 1876, 32 persons were sentenced to death, and 22 
executed. The total number of persons sentenced to 
death in the four years was 108, and the number execu- 
tions 67, five of whom were women." 

On the 12th day of June, 1877, the House of Com- 
mons, England, voted upon the question of the abolition 
of capital punishment and it was defeated. Nays 155 ; 
yeas 55. 



i.